Grand theories of the First Amendment suffer from problems of exclusion and inclusion. The broad principles that justify excluding some human activity from constitutional protection inevitably bleed in ways that support excluding activity that virtually all people think is covered by the First Amendment. The broad principles that justify granting First Amendment protection to activities inevitably bleed in ways that support granting protection to human activities that hardly anyone thinks merit special constitutional protection. The Adversary First Amendment: Free Expression and the Foundations of American Democracy effectively highlights how many standard justifications for excluding commercial advertising from constitutional protection threaten to undermine constitutional protection for consensual core speech rights. Martin Redish less successfully demonstrates that his adversarial theory of democracy would not entail constitutional protection for a wide variety of activity that government may consensually regulate.
Redish maintains that constitutional protection for free speech should be yoked to an adversarial theory of democracy. Adversarialists perceive no common good that human societies may strive for. Democrac
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Supreme Injustice: How the High Court Hijacked Election 2000, Alan M. Dershowitz ; The Votes That Counted: How the Court Decided the 2000 Presidential Election, Howard Gillman Reviewed by Mark A. Graber
Congress Confronts the Court: The Struggle for Legitimacy and Authority in Lawmaking, John F. Stack, Jr. and Colton C. Campbell, eds. Reviewed by Mark A. Graber
Declarations of Independence: Cross-Examining American Ideology, Howard Zinn Reviewed by Mark A. Graber
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